5/11 scotus briefs

press1280 · Jun 21, 2020

jcutonilli said:
If you really want to discuss specifics, why don't you find a case where Warren was discussed, or pick a case you think appropriately addressed why SCOTUS should take the case so we can figure out if it really addressed why SCOTUS should take the case.

Norman v State cert petition: https://www.floridacarry.org/images/stories/norman/SCOTUS/Petition-Cert-Norman-Final.pdf

The case cited Nunn, Chandler, State v. Kerner, Robertson v. Baldwin among others. The opinion by the Florida Supremes split with the then recent CA9 Peruta opinion and in fact this reasoning was novel as far as I can tell.
In addition it gave the court several avenues to decide the case (rule straight up for open carry, or rule that shall-issue satisfied the right).

jcutonilli · Jun 21, 2020

press1280 said:
Norman v State cert petition: https://www.floridacarry.org/images/stories/norman/SCOTUS/Petition-Cert-Norman-Final.pdf

The case cited Nunn, Chandler, State v. Kerner, Robertson v. Baldwin among others. The opinion by the Florida Supremes split with the then recent CA9 Peruta opinion and in fact this reasoning was novel as far as I can tell.
In addition it gave the court several avenues to decide the case (rule straight up for open carry, or rule that shall-issue satisfied the right).

I would have denied the petition. There was not really a reason that SCOTUS should have taken the case. Norman has the ability to keep and bear arms. The issue about whether there is sufficient evidence to justify prohibiting open carry seems a bit exaggerated. There are reasons why you might want to and reasons why you might not. Even on this forum I doubt you will find a unanimous conclusion. This is precisely what the legislature is supposed to resolve.

Not a good pick.

press1280 · Jun 22, 2020

jcutonilli said:
I would have denied the petition. There was not really a reason that SCOTUS should have taken the case. Norman has the ability to keep and bear arms. The issue about whether there is sufficient evidence to justify prohibiting open carry seems a bit exaggerated. There are reasons why you might want to and reasons why you might not. Even on this forum I doubt you will find a unanimous conclusion. This is precisely what the legislature is supposed to resolve.

Not a good pick.

Ok what about Rogers?
Plaintiff cannot legally bear arms. He was assaulted and threatened. We have another circuit split. Court does not have to decide open or concealed since the state doesn’t differ legally speaking. Open carry was put under a general carry permit in 1966, hardly “long-standing”. The states’ own precedents inform us how impossible it is to get a permit. And let’s not forget who the plaintiffs attorney is, Paul Clement, who’s argued many times before the court and would be one person who knows what buttons to push to get cert.

jcutonilli · Jun 22, 2020

press1280 said:
Ok what about Rogers?
Plaintiff cannot legally bear arms. He was assaulted and threatened. We have another circuit split. Court does not have to decide open or concealed since the state doesn’t differ legally speaking. Open carry was put under a general carry permit in 1966, hardly “long-standing”. The states’ own precedents inform us how impossible it is to get a permit. And let’s not forget who the plaintiffs attorney is, Paul Clement, who’s argued many times before the court and would be one person who knows what buttons to push to get cert.

The law at question at least denies the ability to bear arms outside the home. Clement did not actually write the petition or the reply, Thompson did. This case was held over from last term and they apparently changed attorney of record while it was being held. Clement filed an amicus brief for the NRA. None cited Warren v DC as a relevant case.

The biggest problem is that it appears to be nothing more that a repeat of Drake with the exception that Wren created a split. The split is their first reason for granting cert, and the other two reasons are related to contradictions with Heller and McDonald.

The problem is that while Heller does not want the issue decided on a case by case basis, it allows intermediate scrutiny. Wren says do things one way, while the other courts say to use intermediate scrutiny. Which is correct?

The case did not expand on the record in Drake and simply accepted whatever was previously argued. The claimed public safety interest is to reduce guns in public, but still allow those with "justifiable need". The petitioners respond by saying that you cannot reduce secondary effects, but they are not simply trying to reduce secondary criminal effects. The petitioners also claim that certain data does not provide a causal link between right-to-carry laws and crime rates, yet it does not appear that the respondents relied on that particular data.

I don't really see a compelling argument for taking this case. SCOTUS would need to figure out what is the real problem. It is better to wait for a better case that explains the issues better.

press1280 · Jun 23, 2020

jcutonilli said:
The law at question at least denies the ability to bear arms outside the home. Clement did not actually write the petition or the reply, Thompson did. This case was held over from last term and they apparently changed attorney of record while it was being held. Clement filed an amicus brief for the NRA. None cited Warren v DC as a relevant case.

The biggest problem is that it appears to be nothing more that a repeat of Drake with the exception that Wren created a split. The split is their first reason for granting cert, and the other two reasons are related to contradictions with Heller and McDonald.

The problem is that while Heller does not want the issue decided on a case by case basis, it allows intermediate scrutiny. Wren says do things one way, while the other courts say to use intermediate scrutiny. Which is correct?

The case did not expand on the record in Drake and simply accepted whatever was previously argued. The claimed public safety interest is to reduce guns in public, but still allow those with "justifiable need". The petitioners respond by saying that you cannot reduce secondary effects, but they are not simply trying to reduce secondary criminal effects. The petitioners also claim that certain data does not provide a causal link between right-to-carry laws and crime rates, yet it does not appear that the respondents relied on that particular data.

I don't really see a compelling argument for taking this case. SCOTUS would need to figure out what is the real problem. It is better to wait for a better case that explains the issues better.

What specifically do you think could be expanded from Drake?

I know NJ thinks that somehow their "justifiable need" passes muster if they grant a few measly permits here and there but isn't it enough that plaintiffs are being denied permits? In addition, in Drake the majority even admitted,"
To be sure, New Jersey has not presented us with much evidence to show how or why its legislators arrived at this predictive judgment. New Jersey's counsel acknowledges that “there is no available commentary which would clarify whether or not the Legislature considered statistical information to support the public safety purpose of the State's Carry Permit Law.” So if the state can't even say why or how it came to its conclusions, what's going to change?

Mike OTDP · Jun 23, 2020

I'm starting to wonder if the right approach to CCW might be a 14th Amendment Due Process line of attack. Most if not all of these may-issue states have extremely vague standards...if any.

rbird7282 · Jun 23, 2020

Getting very tired of the public safety argument by government as a means to infringe on our rights, it's ********. Not found anywhere in The Constitution.

jcutonilli · Jun 23, 2020

press1280 said:
What specifically do you think could be expanded from Drake?

I know NJ thinks that somehow their "justifiable need" passes muster if they grant a few measly permits here and there but isn't it enough that plaintiffs are being denied permits? In addition, in Drake the majority even admitted,"
To be sure, New Jersey has not presented us with much evidence to show how or why its legislators arrived at this predictive judgment. New Jersey's counsel acknowledges that “there is no available commentary which would clarify whether or not the Legislature considered statistical information to support the public safety purpose of the State's Carry Permit Law.” So if the state can't even say why or how it came to its conclusions, what's going to change?

I am not sure you need to expand the record, but if all you are really relying on is the past case that already was rejected by the court, you are already at a disadvantage. There is no mention of the passage you cite in the petition. You have made a stronger argument for SCOTUS taking the case than can be found in the petition.

I don't think they are looking for a split, I think they are really looking to find systematic errors. The split is the easiest way to find them. Demonstrating that this particular case is wrongly decided does not demonstrate this either. They specifically mention that "A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule of law."

What needs to be demonstrated is why the court is not applying intermediate scrutiny properly. The majority of the petition is devoted to why the 2A includes public carry, yet there is no real disagreement on the issue. If the 2A did not include public carry, there would be no need to apply intermediate scrutiny.

They never really attacked NJ's public safety argument or explained that the state does not protect individuals and to truly protect the public requires individuals to protect themselves. If you want a full description of how to attack the governments position in a carry case see my brief in Young.

jcutonilli · Jun 23, 2020

rbird7282 said:
Getting very tired of the public safety argument by government as a means to infringe on our rights, it's ********. Not found anywhere in The Constitution.

Challenge it. The 10 rejected cases failed to challenge it.

delaware_export · Jun 24, 2020

Interesting what you say here. It’s what us laymen call.. legal mumbo jumbo. Aka BS. Here’s what I mean, and no offense meant to you. Not intending to shoot the messenger here!

Iirc, castle rock says that .gov has no duty to, or liability for failing to, protect the public.

Evidence in Florida as the stoneman thing. A lot of folks learned this the hard way... the hiding deputy.

Saying that a scotus ruling as such wasn’t explained properly, when .gov uses it to protect itself against liability suits, is nonsense.

And from that, that police are not there when most stuff happens, and it’s really up to individuals to ensure their own safety, is basically common sense. (Yeah, not as common as some think apparently)

It just all seems like excuses for stupidity on the part of .gov, or worse, collision to do the wrong thing. If citizens are supposed to know the law, without special explanation.... saying that this has to be explained in every case a court hears, is just bs.

Anyway, I hope that when young goes en banc, wolfwood ‘splains this to the court.

jcutonilli said:
...
They never really attacked NJ's public safety argument or explained that the state does not protect individuals and to truly protect the public requires individuals to protect themselves. If you want a full description of how to attack the governments position in a carry case see my brief in Young.

jcutonilli · Jun 24, 2020

delaware_export said:
Interesting what you say here. It’s what us laymen call.. legal mumbo jumbo. Aka BS. Here’s what I mean, and no offense meant to you. Not intending to shoot the messenger here!

Iirc, castle rock says that .gov has no duty to, or liability for failing to, protect the public.

Evidence in Florida as the stoneman thing. A lot of folks learned this the hard way... the hiding deputy.

Saying that a scotus ruling as such wasn’t explained properly, when .gov uses it to protect itself against liability suits, is nonsense.

And from that, that police are not there when most stuff happens, and it’s really up to individuals to ensure their own safety, is basically common sense. (Yeah, not as common as some think apparently)

It just all seems like excuses for stupidity on the part of .gov, or worse, collision to do the wrong thing. If citizens are supposed to know the law, without special explanation.... saying that this has to be explained in every case a court hears, is just bs.

Anyway, I hope that when young goes en banc, wolfwood ‘splains this to the court.

What are you talking about?

I am not say a SCOTUS ruling is not explained properly, I am saying the plaintiffs never raised the issue. The government is making claims that are not exactly true. It is up to the plaintiffs to dispute the claim and they have failed to do so.

danb · Jun 24, 2020

Open carry bans have been challenged ... and lost.

Thomas' dissent in Rogers (and Peruta) is pretty clear. I think that the real issue is not how its argued, its Roberts. Thomas gave us a clue in Peruta: "Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry"

...

I think we widely assumed at the time Kennedy was the problem, but its Roberts.

press1280 · Jun 24, 2020

danb said:
Open carry bans have been challenged ... and lost.

Thomas' dissent in Rogers (and Peruta) is pretty clear. I think that the real issue is not how its argued, its Roberts. Thomas gave us a clue in Peruta: "Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry"

...

I think we widely assumed at the time Kennedy was the problem, but its Roberts.

While I wouldn’t say you’re wrong by any means, we still keep getting (other than Thomas) judges rotating in dissents. It’s still not clear he is 100 percent the issue. It’s certainly plausible Roberts did vote to hear NYSRPA but was OK with it being resolved the way it did.
We may still have a disagreement on what is the standard of review and it’s keeping all cases except NYSRPA from getting cert.

danb · Jun 24, 2020

press1280 said:
While I wouldn’t say you’re wrong by any means, we still keep getting (other than Thomas) judges rotating in dissents. It’s still not clear he is 100 percent the issue. It’s certainly plausible Roberts did vote to hear NYSRPA but was OK with it being resolved the way it did.
We may still have a disagreement on what is the standard of review and it’s keeping all cases except NYSRPA from getting cert.

Well, the last straw in my mind was that he allowed NYSRPA to be moot, while he threw back the DACA immigration case basically nitpicking the way it was handled. Had he picked the same nits in NYSRPA, he would have found it was not moot.

I think that the basic first problem with Roberts is he is a 1990 style "republican" with vast views of the state's police power and a dim view of the 2nd amendment (keep in mind lots
of republicans thought that the assault weapons ban on 1994 was constitutional).

The other problem, is that absent Scalia to anchor him, Roberts is becoming a results-oriented justice who reverse engineers decisions.

I had held out a lot of hope this was not the case once NYSRPA was granted, but I think now the evidence is pretty clear.

The only real solution will be to marginalize Roberts. If thats even possible. If the election were held today Biden would win, and we would all be screwed.

jcutonilli · Jun 24, 2020

danb said:
Open carry bans have been challenged ... and lost.

Thomas' dissent in Rogers (and Peruta) is pretty clear. I think that the real issue is not how its argued, its Roberts. Thomas gave us a clue in Peruta: "Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry"

...

I think we widely assumed at the time Kennedy was the problem, but its Roberts.

Were the open carry bans the thing that were lost or was it the challenge to those bans that was lost?
We were actually discussing the Rogers case, while it does cover open carry, it also addresses concealed carry.

If the problem is really Roberts, why does Thomas want to take the case. Wouldn't that really mean a loss? Alito has not joined a dissent of denial for a 2A case that I am aware of. There have never been more than 2 justices joining these dissents and Thomas could not even get Kavanaugh to agree to the entire dissent in Rodgers.

We know for a fact that SCOTUS rarely takes cases that are simply the misapplication of a properly stated rule of law (See SCOTUS rule 10). Why is Rogers or Peruta not simply the misapplication of a properly stated rule of law. In Peruta they dismissed the case because concealed carry is apparently not part of the right based on a historical analysis. This appears to be consistent with Heller, which suggests the same thing. How is this not a properly stated rule of law? You may disagree with its application, but they rarely take cases that have properly stated rules of law.

What was improperly stated in Rogers? The court acknowledges that there is some carry outside the home and performs an intermediate scrutiny analysis that suggests that the law is Constitutional.

jcutonilli · Jun 24, 2020

danb said:
Well, the last straw in my mind was that he allowed NYSRPA to be moot, while he threw back the DACA immigration case basically nitpicking the way it was handled. Had he picked the same nits in NYSRPA, he would have found it was not moot.

I think that the basic first problem with Roberts is he is a 1990 style "republican" with vast views of the state's police power and a dim view of the 2nd amendment (keep in mind lots
of republicans thought that the assault weapons ban on 1994 was constitutional).

The other problem, is that absent Scalia to anchor him, Roberts is becoming a results-oriented justice who reverse engineers decisions.

I had held out a lot of hope this was not the case once NYSRPA was granted, but I think now the evidence is pretty clear.

The only real solution will be to marginalize Roberts. If thats even possible. If the election were held today Biden would win, and we would all be screwed.

Kavanaugh concurred with the dismissal and Thomas could not support the entire dissent in the case. It seems to me that the justices can't seem to agree what exactly should be done and how to do it. This suggests weak arguments. Nobody had proposed anything that a sufficient number of justices can accept.

rbird7282 · Jun 25, 2020

jcutonilli said:
Challenge it. The 10 rejected cases failed to challenge it.

It shouldn’t have to be challenged, it’s ******** made up by the government

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jcutonilli · Jun 25, 2020

rbird7282 said:
It shouldn’t have to be challenged, it’s ******** made up by the government

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The Declaration of Independence indicates that the role of government is to secure out rights. One of those rights is the right to your life. Public safety is simply the government securing everyone's right to life. Why is that wrong?

rbird7282 · Jun 25, 2020

jcutonilli said:
The Declaration of Independence indicates that the role of government is to secure out rights. One of those rights is the right to your life. Public safety is simply the government securing everyone's right to life. Why is that wrong?

No it’s not. It is a method used by government to restrict our rights. It’s not the government’a responsibility, it’s up to the individual.
Nowhere in the Constitution does it mention public safety, you are inferring that the government securing our rights to life =public safety.
Police arresting people for breaking the law (Constitutional laws) is very different then the police “protecting” the public. They can’t protect everyone, I think everyone here would agree with that.
The Constitution also NEVER mentions restricting rights in the name of public safety.

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pcfixer · Jun 25, 2020

rbird7282 said:
No it’s not. It is a method used by government to restrict our rights. It’s not the government’a responsibility, it’s up to the individual.
Nowhere in the Constitution does it mention public safety, you are inferring that the government securing our rights to life =public safety.
Police arresting people for breaking the law (Constitutional laws) is very different then the police “protecting” the public. They can’t protect everyone, I think everyone here would agree with that.
The Constitution also NEVER mentions restricting rights in the name of public safety.

Sent from my iPhone using Tapatalk

could not have said this any better myself.

5/11 scotus briefs

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